With a decision published today, the Higher Regional Court of Frankfurt am Main prohibited the publication of “purchased” customer reviews unless the remuneration was also pointed out.
The respondent in the case had offered third parties the creation and publication of customer reviews for a fee. On request, this provides a tester who evaluates the purchased product and is normally allowed to keep the product for this purpose – if necessary against payment of a small own share. The review is automatically posted on Amazon via the respondent’s portal.
While the Regional Court of Frankfurt am Main refused to issue an injunction, the Higher Regional Court agreed with Amazon.
Thus, no customer reviews may be published without at the same time pointing out that these reviews have been commissioned for a fee. The defendant acted unfairly because it did not specify the ‘commercial purpose’ of the product reviews discontinued, the OLG states. The consumer could “not clearly and unambiguously” identify the commercial background of the assessments. The decisive factor here is the view of the average consumer, who is on average informed, appropriately attentive and circumspect. In the case of product evaluations, the latter assumes that ‘in principle they are created without consideration’. The idea of each valuation portal is based on the fact that the evaluators ‘acquired the products on the basis of an independent purchasing decision and now communicate their valuation unaffected by third parties’. The consumer does not necessarily expect an objective assessment – comparable to an editorial report – but an “authentic” valuation, not a “purchased” one. The reviews provided by the respondent did not correspond to this consumer expectation, since the testers received an asset advantage for the drafting of the valuation.
The decision is not final. The respondent may appeal against the decision on which the landgericht would have to rule. The background to this legal remedy is that the OLG has issued the injunction, which was initially unsuccessfully applied for at the Landgericht. The legality of an injunction issued for the first time may, in principle, be reviewed by the defendant by means of an opposition to the court of entry, which is not bound by time limits. An appeal would be brought against a decision of the landgericht, on which the OLG would have to decide.
By the way, sellers should also be careful when using these services. The behaviour of publishing purchased reviews without indicating that consideration was paid for the valuations could also be warned by competitors.
